If Google yanks "Innocence of Muslims," will it lose its DMCA Safe Harbor?

Robert Cringely speculates on the reasoning behind Google's decision to continue hosting the controversial "Innocence of Muslims" clip despite a request from the State Department to remove it. Cringely believes that Google worries that if it were to begin removing videos, it would lose access to the "Safe Harbor" defense of the 1998 Digital Millennium Copyright Act, which exempts it from liability for copyright violations by its users, provided that it does not police the users' uploads (except to ensure compliance with its terms of service). Thus if Google were to begin removing videos from US view on non-copyright/non-terms-of-service grounds, it could be liable for $150,000 copyright fines for every infringing video in the YouTube collection.

25 Responses to “If Google yanks "Innocence of Muslims," will it lose its DMCA Safe Harbor?”

On one hand, it does not seem much different than when the state department asks newspapers to voluntarily wait to release certain news stories, but it still makes me very uncomfortable. Especially since they are effectively asking google to censor it’s users. And yes, I know freedom of speech does not apply when you are using someone else’s products, but where does freedom of speech and press lie when most of our communications are traveling over various bushiness’s products?

The DMCA point is likely rather weak(since pretty much all terms of service are so vague and broad that only widespread non-enforcement keeps them invisible, so they could probably get any intern in legal to hack together a plausible justification of a ToS violation); but there are other issues.

If they do pull this one, the floodgates are open for a continuous deluge of demands from various butthurt parties demanding that things that offend them be removed. We all know how much fun Google has been having dealing with Team Copyright, who ostensibly exist under a legal framework and can be bargained with… Just imagine if an informal ‘Your video hurt my feelings’ takedown process where to evolve into customary practice. That would be a laugh and a half.

Secondly, of course, does youtube want to look like(or be) a tool of US foreign policy interests? The world isn’t exactly lacking in *tube video hosting sites, and being ‘that video hosting site that the US government can do a takedown on just by asking, no lawyers, no nothing’ isn’t necessarily going to win them much additional marketshare…

YouTube’s terms of service say “You further agree that you will not submit to the Service any Content or other material that is contrary to the YouTube Community Guidelines”, which in turn says “we do not permit hate speech (speech which attacks or demeans a group based on race or ethnic origin, religion …)”.

So surely they can take it down if they judge it contravenes that rule?

The First Amendment is a restraint on government action, not the actions of private individuals. It places no obligation upon Google to host any particular video, just like BoingBoing is not legally required to host every comment submitted to us.

Oh I totally appreciate that, it’s their site and their call (within the confines of the laws of the country their servers reside), I just mean from a legal perspective. A platform like YouTube should be as free and open as possible – its too important not to be.

But who says this video is hate speech? Hate speech refers to speech that attacks identifiable groups of people. It does NOT refer to speech that is critical of ideas or beliefs or of historical figures. A racist attack against Arabs would be hate speech. Mockery of a religion is not, even if it is profoundly offensive to believers in that religion.

I should note that I haven’t seen the video so I’m going by what I’ve read of it in the news.

Empirically speaking ‘Hate speech’ is a flexible enough category that it generally ends up referring to “anything that motivates a bunch of people to cry about how mean and hurtful it is and how sad that makes them”. Exceptions, of course, are generally made to allow tradition-sanctioned behavior(such as two mutually incompatible religions expounding that they are the one true path to salvation and all others are damned); but ‘hate speech’ laws spend a great deal of time breathing down the necks of mere hecklers and thought criminals.

My concern is the selectivity if they did pull this one. Yes, this one was used as an excuse for anti-western violence, but a simple Google search will find plenty more content that would be offensive to the perpetrators of these acts. Where would we draw the line?

The video in question is a pile of trash, but I passionately defend freedom of speech and would be horrified if it was taken down. It is essential that Google isn’t bullied into taking down any video because a religious group is upset.

1. I find it unfortunate (and a little weird) that the Cringely article was compelled to explain why he felt it was OK to go ahead and use the name “Muhammad” in the headline of the story… as if such a minor act requires explanation or justification.

2. The underlying premise is that google should take down the video…. I dont see why that would be so, DMCA or not. As he said, It’s not that they are deliberately being pricks about this, their lawyers are telling them to do it. But… I dont see them being pricks at all. I think they’d be pricks to make an exception for a video that doesnt otherwise violate their rules.

3. He offers as potential evidence for the DMCA theory that google did remove the video from some countries. But… isnt that already part of google’s rulebook? Remove stuff in countries where such things are illegal? That seems as much a “it violates our terms of service” act as any Safe Harbor reaction. *shrug*

As I understand it, the DMCA relates to copyright infringement. This video is original content, posted – presumably – by the copyright owner, so the DMCA shouldn’t enter into it.

YouTube’s own terms of service – like those of most video hosting sites – permit them to remove videos “for reasons other than copyright infringement, such as, but not limited to, pornography, obscenity, or excessive length”. Exercising that clause has never called into question their Safe Harbor status before, and it shouldn’t now.

Finally, even if the DMCA was applicable, Safe Harbor isn’t a binary either/or thing. Initially, many content hosters believed that any preemptive policing of their content inventory would lose them their Safe Harbor status, and responded by turning a blind eye to any misuse of their service, taking down material only when they received a takedown notification. Recent court decisions (I don’t have a reference, sorry) have held that hosters can (and should) take ‘reasonable measures’ to pre-emptively detect and eliminate abusive content on their services without threatening their Safe Harbor status.

Is it necessary to invoke Safe Harbor to explain this (lack of) action? Maybe Google really understands the difficulty of free speech. God knows they’ve had enough time to get used to the concept. They have to defend peoples’ right to say things, even when those things are reprehensible.

I Am Okay With This.

Let the battle over the dumb video be fought somewhere else, and preferably only with words.

Seeing that Google has axed the video in India and Indonesia as of this morning, perhaps they’re half-stepping it by only removing it in countries without common-carrier (and/or weak free-speech) laws.

Not that I approve of such measures- quite the contrary- but how long is it going to be before nice men in black suits, black sunglasses and wires behind their ears show up at 3am on a Tuesday to persuade these filmmakers to voluntarily remove this video? Does anyone out there doubt that little details like first amendment rights would protect a piddly youtube video in the face of international backlash? Of course, it’d be a matter of closing the barn door after the horse has escaped at this point.

Heck, at this point, it sounds like it’d be a good bargain to throw five-figures worth of discretionary funds at these guys, in trade for an unexplained voluntary takedown and an ironclad non-disclosure agreement. (And low-grade FBI surveillance for the next couple decades thrown in gratis- what a deal!) It’d certainly come out cheaper than the increased bodyguards and military support for overseas personnel required now. I know, that’s not the way things are supposed to work. Guess I’m just getting cynical in my old age.

That would very likely be counterproductive, even if In Soviet America, Land of The Free, it would likely be viable to have G-man Jackboots pay you a visit:

It’s out now, and you bet that there are copies around, probably at least one in every keyboard jihadi’s video edit booth being dubbed with yet more anti-prophet slurs. So, even if the original posters went to Gitmo yesterday, it’d still be in the wild.

More importantly(while this hardly mollifies the assorted attack organizers) The US doesn’t control the production of films in the US.. This video, or any other, made by a private citizen in private capacity is not a statement of US policy or endorsed by the US. The harder the feds lean on people who inconvenience them, the less plausibly we can actually assert this and the more damaging future such incidents become. We essentially set the precedent that we have to black-bag every two-bit whacko or we end up endorsing him by proxy.

OK I see this an an opportunity for the BoingBoing community to change the world. Can someone create a kickstarter project to buy the rights to Innocence of Muslims and then invoke copyright protection to force Google to take it down? Its not a long term solution to this kind of problem but it might help make the world better in the short run. I’d contribute if the current copyright holder is willing to sell.

Let me clarify something. I’m not in favor of taking it down to appease the ringleaders of violence but to take the matter out of the hands of the government and Google. I’m concerned that the U.S. government might force Google to remove it, thus setting a bad precedent for free speech interests in the future (as many of you point out). I think that government taking down the video is loss for free speech while every day it is up helps our enemies spread fear and chaos. A quiet withdrawal of the video by the copyright holder seems like a preferable 3rd option.

Freedom of speech trumps terrorist butthurt. Period. We as a nation can NOT open the flood gates and allow our freedoms to be eroded further. The threat of future violence is not good enough a reason to censor anything.

I think if they removed this video they would also have to remove every Christopher Hitchens video, ever. It appears our Islamist friends have missed his existence so far…otherwise they could be revolting 24/7 from now on.

Cringely also wonders why the Obama administration has not issued an order to Google to take down the video, a question that makes absolutely no legal sense at all which pretty much makes me ditch any speculation on his part for this matter.